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URL: http://www.bailii.org/eu/cases/ECHR/2013/1368.html
Cite as: (2013) 57 EHRR SE8, [2013] ECHR 1368, 57 EHRR SE8

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FOURTH SECTION

DECISION

This version was rectified on 26 June 2013

under Rule 81 of the Rules of Court.

Applications nos. 12626/13 and 2522/12
Joseph MCLEAN against the United Kingdom
and Kevin COLE against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 11 June 2013 as a Chamber composed of:

          Ineta Ziemele, President,
          David Thór Björgvinsson,
          Päivi Hirvelä,
          Ledi Bianku,
          Vincent A. De Gaetano,
          Paul Mahoney,
          Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having regard to the above applications lodged on 31 January 2013 and 28 October 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant in the first case, Mr Joseph McLean, is a British national, who was born in 1980. He was represented before the Court by Taylor & Kelly, a firm of solicitors based in Coatbridge.

The applicant in the second case, Mr Kevin Cole, is a Jamaican national, who was born in 1974. He was represented before the Court by Leigh Day & Co, a firm of solicitors based in London.

Both applicants are in detention following their conviction for various criminal offences.

A. The circumstances of the case

The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June 2009; the parliamentary election on 6 May 2010; elections to the Scottish Parliament on 5 May 2011; a nationwide referendum on the alternative vote on 5 May 2011; local government elections on various dates; and future elections.

B. Relevant domestic law and practice

1. Voting legislation

(a) General elections and local government elections

. Pursuant to sections 1-4 of the Representation of the People Act 1983 a convicted person, during the time that he is detained in a penal institution in pursuance of his sentence, is legally incapable of voting at any parliamentary or local election.

(b) Elections to the Scottish Parliament

Section 11 of the Scotland Act 1998 provides that only persons who, on the day of the poll, would be entitled to vote as electors at a local government election and are registered in the register of local government electors are entitled to vote as electors at an election to the Scottish Parliament.

Section 8(1) of the European Parliamentary Elections Act 2002 provides, in so far as relevant, that a person is entitled to vote at an election to the European Parliament if, on the day of the poll, he would be entitled to vote as an elector at a parliamentary election.

(d) The alternative vote referendum

In so far as relevant, section 2 of the Parliamentary Voting System and Constituencies Act 2011 provided that only those who, on the date of the alternative vote referendum, were entitled to vote as electors at a parliamentary election were entitled to vote in the alternative vote referendum of 5 May 2011.

2. Local governments

Each of the four jurisdictions of the United Kingdom (England, Scotland, Wales and Northern Ireland) is subdivided into a number of local authorities. The specific system in place varies depending on the jurisdiction in question.

The system of local government was created by statute. Local authorities’ internal organisation and competences are regulated by statutes enacted by the Parliament of the United Kingdom and by the Parliaments and Assemblies of the three devolved jurisdictions (Scotland, Wales and Northern Ireland).

The functions and powers of local authorities are of a predominantly administrative nature and generally cover areas such as waste management and collection, housing, local planning, council tax collection, licensing, transport and social services. In respect of these various areas, local authorities carry out their duties in accordance with primary legislation governing the area in question and can only act in so far as they are authorised to do so by statute or by subordinate legislation.

Local authorities have the power to make by-laws, which are essentially laws of local application. By-laws usually have to be confirmed by a Government minister or the ministers of the devolved jurisdictions before they can take effect.

C. Recent developments

On 23 November 2010 the Court (Fourth Section) adopted a pilot judgment in Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010 (extracts). It found a violation of Article 3 of Protocol No. 1 in respect of the blanket ban on voting applicable to convicted prisoners as regards parliamentary elections and elections to the European Parliament. It also imposed a deadline for action, indicating that the United Kingdom had to introduce legislative proposals to amend the incompatible legislation within six months of the date on which the judgment became final, with a view to the enactment of the law according to any time-scale determined by the Committee of Ministers.

On 22 November 2012 the Government published a draft bill on prisoners’ voting eligibility. The draft bill includes three proposals: (1) ban from voting those sentenced to four years or more; (2) ban from voting those sentenced to more than six months; or (3) ban from voting all prisoners. The proposals cover both local and parliamentary elections. Although the draft bill is currently drafted to extend to England and Wales only, the introduction and explanatory notes make it clear that the final bill would extend to the whole of the United Kingdom. The devolved jurisdictions are therefore involved in the pre-legislative process.

On 6 December 2012 the Committee of Ministers, responsible for supervising the execution of the judgment, adopted a decision in which it noted the range of options proposed in the draft bill; endorsed the view that the third option aimed at retaining the blanket ban was not compatible with the Convention; invited the Government to keep it regularly informed of the proposed time-scale; and decided to resume consideration of the case at the latest at its September 2013 meeting.

On 16 April 2013 a motion to nominate the six members of the House of Commons to serve on a joint committee which will conduct pre-legislative scrutiny of the draft bill was agreed. On 14 May 2013 a motion to nominate the six members of the House of Lords to serve on the committee was agreed. The committee held its first meeting on 15 May 2013 and will report by 31 October 2013.

On 10 June 2013, there was a hearing before the Supreme Court in the case of McGeoch v. The Lord President of the Council and another. The claimant is a serving prisoner who claims that the prohibition on prisoners voting is incompatible with European Union law.

COMPLAINTS

The first applicant complained under Article 3 of Protocol No. 1 of the Convention of a violation of his right to vote in respect of elections to the Scottish Parliament on 3 May 2007 and 5 May 2011; the European Parliament on 4 June 2009; the United Kingdom Parliament on 6 May 2010; and local government bodies; and in respect of the continuing refusal to allow him to exercise his right to vote. He also complained of a violation of Articles 6 and 13 because he was refused legal aid to pursue domestic proceedings in respect of his complaints.

The second applicant complained under Article 3 of Protocol No. 1 of the Convention of a violation of his right to vote in respect of local government elections in May 2011 and May 2012; in respect of the alternative vote referendum in May 2011; and in respect of the continuing refusal to allow him to exercise his right to vote. He also complained under Article 13 that he was denied an effective remedy in respect of his complaints.

THE LAW

A. Joinder of the applications

B. Complaints regarding the elections to the Scottish Parliament on 3 May 2007 and 5 May 2011; the European Parliament on 4 June 2009; and the United Kingdom Parliament on 6 May 2010

. It is not known whether the first applicant was in detention following a conviction on the date of the elections in 2007, 2009, 2010 and 2011. As the legislation precluding the participation of prisoners in the franchise applies only to prisoners in detention following conviction, any applicant not in post-conviction detention on the date of the relevant election suffered no adverse effect as a result of the legislation. If the first applicant was not in post-conviction detention on the dates of the impugned elections, his complaints are inadmissible pursuant to Article 34 on the basis that he cannot claim to be a victim of any violation of Article 3 of Protocol No. 1.

Even if the applicant was in post-conviction detention at the time of the impugned elections, the Court must assess whether he has complied with Article 35 § 1 of the Convention. Pursuant to that Article, the Court may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies (see generally Tucka (No. 1) v. the United Kingdom (dec.), no. 34586/10, 18 January 2011). Where no effective remedy is available to the applicant, the time-limit expires six months after the date of the acts or measures complained of, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I; and Toner v. the United Kingdom (dec.), no. 8195/08, § 27, 15 February 2011).

As the Court made clear in its judgment in Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, §§ 68-71, 111-115, 118 and 120-122, ECHR 2010 (extracts), legislative amendment of section 3 of the 1983 Act is required in order to prevent further violations of Article 3 of Protocol No. 1 arising in the context of general elections. The blanket restriction imposed by section 3 of the Representation of the People Act 1983 has been extended to elections to the Scottish Parliament by section 11 of the Scotland Act 1998 and to elections to the European Parliament by section 8(1) of the European Parliamentary Elections Act 2002, both of which are parasitic upon the section 3 of the 1983 Act.

In its decision in Toner, cited above, § 29, the Court found that as there was no remedy for the alleged violation of the applicant’s right to vote, the six-month deadline in that case for lodging an application at this Court began to run on the date of the elections to the Northern Ireland Assembly in which the applicant, a convicted prisoner, was unable to participate. Similarly, in the case of the first applicant, the Court is satisfied that the six-month deadline for lodging an application at this Court began to run on the dates of the elections in question.

. However, although the most recent election about which the first applicant complains took place on 6 May 2011, he did not lodge his application until 31 January 2013. His complaints concerning the refusal to allow him to vote in the specified elections were lodged more than six months after the date of the elections about which he complains. The first applicant’s complaints about the elections to the Scottish Parliament, the European Parliament and the United Kingdom Parliament [1] have therefore been lodged outside the time-period allowed by Article 35 § 1 of the Convention and must be declared inadmissible pursuant to Article 35 § 4.

C. Complaints concerning local government elections

The applicants complained that they were not permitted to vote in local elections on various dates. The Court must decide whether elections to local government bodies can be considered to fall within the scope of Article 3 of Protocol No. 1, which provides:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

. The Court recalls that the word “legislature” in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 53, Series A no. 113; and Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999-I). It has therefore found the term to encompass the Flemish Council in Belgium, on the basis that constitutional reform had vested in it sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (Mathieu-Mohin and Clerfayt, cited above, § 53). Similarly, regional councils were held to form a constituent part of the legislature in Italy (Vito Sante Santoro v. Italy, no. 36681/97, §§ 52-53, ECHR 2004-VI).

However, local government organs have generally been found not to form part of the legislature of the State in question. Thus, highlighting the absence of any legislative power and the nature of the delegated powers exercised by them under the ultimate control of Parliament, the former Commission held that local authorities in Northern Ireland; municipal councils in Belgium; and metropolitan county councils in England could not be considered as part of the “legislature” (see, respectively, X. v. the United Kingdom, no. 5155/71, Commission decision of 12 July 1976, DR 6, p. 13; Clerfayt, Legros and Others v. Belgium, no. 10650/83, Commission decision of 17 May 1985, DR 42, p. 212; and Booth-Clibborn and Others v. the United Kingdom, no. 11391/85, Commission decision of 5 July 1985, DR 43, p. 236). More recently, adopting the same approach, the Court has found Article 3 of Protocol No. 1 to be inapplicable to local and mayoral elections in Russia; regional elections in France; elections to the Provincial Council in Italy; and elections to municipal and district councils and regional assemblies in Poland (see, respectively, Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000-I; Malarde v. France (dec.), no. 46813/99, 5 September 2000; Santoro v. Italy, no. 36681/97, 16 January 2003; and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006-IV).

Turning to examine the relevant local authorities in the United Kingdom (see paragraphs 9-12 above), it is noteworthy that their legislative function is restricted to the making of by-laws, which are applicable only in their local authority area, and that the scope of this function is rigidly limited by statute (see paragraph 12 above). The Court reiterates that the power to make regulations and by-laws which is conferred on the local authorities in many countries is to be distinguished from legislative power, which is referred to in Article 3 of Protocol No. 1 to the Convention, even though legislative power may not be restricted to the national parliament alone (see Cherepkov and Mółka, both cited above). It is further of relevance that local authorities in the United Kingdom are the repositories of powers which are essentially of an administrative nature and concern the organisation and provision of local services. These powers are granted by statute or other subordinate legislation which defines closely and restrictively their field of application.

The Court therefore finds that local government bodies in the United Kingdom do not form part of the “legislature”. These complaints are accordingly inadmissible as incompatible ratione materiae with the provisions of the Convention and its Protocols under Article 35 §§ 3 (a) and 4.

D. Complaint concerning the alternative vote referendum

The second applicant complained that he was not permitted to vote in the alternative vote referendum.

The Convention organs have emphasised on a number of occasions that Article 3 of Protocol No. 1 is limited to elections concerning the choice of the legislature and does not apply to referendums (see X. v. the United Kingdom, no. 7096/75, Commission decision of 3 October 1975, Decisions and Reports (DR) 3, p. 165; Bader v. Germany, no. 26633/95, Commission decision of 15 May 1996, unreported; Castelli and Others v. Italy, nos. 35790/97 and 38438/97, Commission decision of 14 September 1998, DR 94, p. 102; Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI; and Borghi v. Italy (dec.), no. 54767/00, ECHR 2002-V (extracts)).

There is nothing in the nature of the referendum at issue in the present case which would lead the Court to reach a different conclusion here. It follows that complaint concerning the alternative vote referendum is incompatible ratione materiae with the provisions of the Convention and its Protocols within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

E. Complaint concerning future elections

The applicants complained of a continuing situation, making reference to their ineligibility to vote at future unspecified elections.

There is no doubt that for as long as the legislation remains unchanged, those who remain in post-conviction detention will continue potentially to be victims of a violation of Article 3 of Protocol No. 1. However, the effect of the voting prohibition will only be felt if a further election to a “legislature” occurs before amended legislation has been enacted.

Following the adoption of the Court’s pilot judgment in Greens and M.T., cited above, a draft bill has been published and a joint committee has been charged with carrying out pre-legislative scrutiny of the bill. The committee will report by 31 October 2013 (see paragraphs 14-16 above). Further, the Committee of Ministers is actively supervising the steps taken by the United Kingdom authorities to implement the Court’s rulings in Hirst and Greens and M.T. It will next assess the position in September 2013 (see paragraph 15 above).